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Aguilar-Escoto v. Sessions

United States Court of Appeals, First Circuit

October 27, 2017

JEFFERSON B. SESSIONS, III, Attorney General of the United States, [*] Respondent.


          Carlos E. Estrada, with whom Estrada Law Office was on brief, for petitioner.

          Yanal H. Yousef, Trial Attorney, Office of Immigration Litigation, Civil Division, with whom Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, and Benjamin C. Mizer, Principal Deputy, Assistant Attorney General, Civil Division, were on brief, for respondent.

          Before Howard, Chief Judge, Thompson and Kayatta, Circuit Judges.


         Petitioner Irma Aguilar-Escoto, a native and citizen of Honduras, asks us to vacate a Board of Immigration Appeals ("BIA" or "Board") order rejecting her claim for withholding of removal. Aguilar's application for relief was predicated upon alleged domestic violence by her ex-husband. Because the BIA failed to consider potentially significant documentary evidence submitted in support of Aguilar's claim, we vacate the agency's order.


         Aguilar first entered the United States in August 2005, but she was apprehended and removed to Honduras. About four years later, Aguilar returned to the United States. She was again apprehended, and the Department of Homeland Security filed a notice to reinstate her prior removal order. The case was subsequently referred to Immigration Court.

         Aguilar then filed the instant application for withholding of removal. In order to succeed on a withholding claim, an applicant must establish that her "life or freedom would be threatened" in her home country because of her "race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). In light of her reinstated removal order, Aguilar was not eligible to apply for asylum, a separate form of relief for aliens harboring a "well-founded fear of persecution on account of" a protected ground. 8 U.S.C. § 1101(a)(42)(A); see also Garcia v. Sessions, 856 F.3d 27, 33 (1st Cir. 2017).

         In March 2013, an immigration judge ("IJ") conducted a merits hearing. At the hearing, Aguilar testified to suffering relentless physical, emotional, and sexual abuse by Victor Gonzalez, whom she married in 1997 and later divorced. The IJ, however, citing various perceived inconsistencies, found that Aguilar's testimony was "not credible" and therefore discounted it.

         After rendering this adverse credibility finding, the IJ went on to separately address the other evidence that Aguilar had submitted "[a]side from her discredited testimony." Aguilar had provided "police reports, a family court order, a medical record, and two declarations" evidencing her abusive relationship with Gonzalez. According to the IJ, this documentary evidence "suggest[ed] that between 2004 and 2008, [Gonzalez] struck [Aguilar] once or twice, threatened [Aguilar] and her family, and publicly ridiculed and shamed [Aguilar]. . . . As a result, [Aguilar] sought court-ordered psychological treatment and was prescribed antidepressants and sedatives . . . ." The IJ did not question the credibility of Aguilar's documentary evidence but instead concluded that the abuse reflected therein was not sufficiently serious and persistent to warrant relief.

         Aguilar appealed to the BIA, challenging the IJ's adverse credibility finding. She also argued that she had presented sufficient "credible evidence" of her abuse, citing the documentary materials submitted to the IJ in addition to her testimony. The BIA dismissed her appeal, holding that the IJ "did not commit clear error in her adverse credibility determination." The Board did not so much as mention the IJ's separate treatment of the documentary evidence. Rather, based solely on its credibility ruling, the BIA concluded that Aguilar "failed to meet her burden of proof for asylum." On appeal, the government concedes that the BIA's reference to asylum was erroneous. Aguilar did not, and indeed could not, pursue an asylum claim. The Board went on to conclude that Aguilar was not eligible for withholding of removal because withholding "has a higher burden of proof" than asylum.

         Aguilar now petitions this court to review the BIA decision rejecting her withholding of removal claim.[1] Again, she challenges the agency's adverse credibility finding but also contends that, notwithstanding her credibility, the agency "failed to consider [her] well-documented claim of past persecution." The government curiously responds to the first point but declines to argue the second, devoting the entirety of its brief to the credibility of Aguilar's testimony. We now hold that, irrespective of the supportability ...

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